Coalition for a Sustainable Delta et al v. Carlson et al

Filing 106

STIPULATION and ORDER RE Plaintiff's Standing, signed by Judge Oliver W. Wanger on 12/11/2009. (Kusamura, W)

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EDMUND G. BROWN JR., State Bar No. 37100 Attorney General of California DEBORAH A. WORDHAM, State Bar No. 180508 Deputy Attorney General DANIEL FUCHS, State Bar No. 179033 Deputy Attorney General CLIFFORD T. LEE, State Bar No. 74687 Deputy Attorney General 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: [phone] Fax: [phone] E-mail: [e-mail] Attorneys for John McCamman, Acting Director, Department of Fish and Game IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

COALITION FOR A SUSTAINABLE DELTA, BELRIDGE WATER STORAGE DISTRICT, BERRENDA MESA WATER DISTRICT, LOST HILLS WATER DISTRICT, WHEELER RIDGEMARICOPA WATER STORAGE DISTRICT, AND DEE DILLON, Plaintiffs, v. JOHN McCAMMAN, Acting Director, California Department of Fish and Game, Defendant, CENTRAL DELTA WATER AGENCY, et al., Defendant-Intervenors, CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, et al., Defendant-Intervenors.

1:08-CV-00397-OWW-GSA (Related to Case Nos. 1:05-CV-022-GSA and 1:06-CV-00245-OWW-GSA) STIPULATION AND ORDER RE PLAINTIFFS' STANDING

STIPULATION AND [PROPOSED] ORDER RE PLAINTIFFS' STANDING (1:08-CV-00397-OWW-GSA)

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STIPULATION Plaintiffs Coalition for a Sustainable Delta, Belridge Water Storage District, Berrenda Mesa Water District, Lost Hills Water District, Wheeler Ridge-Maricopa Water Storage District, and Dee Dillon (Plaintiffs), Defendant John McCamman, Acting Director, California Department of Fish and Game (Defendant), Intervenors Central Delta Water Agency, South Delta Water Agency, Honker Cut Marine, Inc., Rudy Mussi and Robert Souza (CDWA et al.), and Intervenors California Sportfishing Protection Alliance, California Striped Bass Association, and Northern California Council of Federation of Flyfishers (CSPA et al.) hereby stipulate and agree as follows: A. Whereas Plaintiffs and each of them have alleged standing to maintain the instant

action against Defendant for alleged violations of the federal Endangered Species Act by enforcing the California Fish and Game Commission's Striped Bass Sportfishing Regulation, 14 C.F.R. § 5.75; and B. Whereas, Defendant, CDWA et al. and CSPA et al. dispute the standing of Plaintiffs,

and each of them to maintain the instant action; and C. Whereas, Defendant has propounded discovery, including interrogatories and requests

for production of documents to Plaintiffs, and each of them, seeking to discover the factual basis for Plaintiffs' alleged standing; and D. Whereas, Plaintiffs contend that Plaintiff Dee Dillon is a member of Plaintiff

Coalition for a Sustainable Delta (Coalition); and E. Whereas, Plaintiffs, and each of them, in their respective Responses dated May 29,

2009, have objected to discovery propounded by Defendant on Plaintiffs Coalition, Belridge Water Storage District, Berrenda Mesa Water District, Lost Hills Water District, and Wheeler Ridge-Maricopa Water Storage District on the ground that the standing of one plaintiff is sufficient to maintain the instant action on behalf of all the named Plaintiffs, in reliance on, among other decisions, Massachusetts v. EPA, 549 U.S. 518 (2007) and Council of lns. Agents & Brokers v. Molasky-Arman, 522 F .3d 925, 932 (9th Cir. 2008) (see also letter dated October 1, 2009 from Henry S. Weinstock, Esq. to Daniel M. Fuchs, Esq.); and 1
STIPULATION AND ORDER RE PLAINTIFFS' STANDING (1:08-CV-00397-OWW-GSA)

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F.

Whereas, Plaintiffs, and each of them, contend that they will be able to establish the

standing of Plaintiff Dee Dillon and Plaintiff Coalition, to the extent that Plaintiff Dee Dillon is a member of Plaintiff Coalition, (and through them, the other Plaintiffs) to maintain the instant action; Now therefore, to resolve the discovery dispute and to reduce the issues in this litigation, the parties stipulate and agree that, subject to the approval of the Court: 1. Plaintiffs shall, in any summary adjudication proceeding or at trial, assert and present

evidence of the standing only of Plaintiff Dee Dillon, and thereby assert the standing of Plaintiff Coalition, only to the extent that it is based upon Plaintiff Dee Dillon being a member having standing of Plaintiff Coalition; 2. Plaintiffs waive their right to assert and present evidence of the standing of Plaintiff

Coalition, except to the extent that the standing of Plaintiff Coalition is based upon Plaintiff Dee Dillon being a member of Plaintiff Coalition having standing of his own right, and the interests at stake in this case are germane to the purposes of Plaintiff Coalition; 3. Plaintiffs waive their right to assert and present evidence of the standing of Plaintiffs

Belridge Water Storage District, Berrenda Mesa Water District, Lost Hills Water District, and Wheeler Ridge-Maricopa Water Storage District and other members of Coalition; 4. Failure by Plaintiffs to establish the standing of Plaintiff Dee Dillon shall be deemed

a failure to establish standing of all of the Plaintiffs, but if Plaintiffs establish the standing of Plaintiff Dee Dillon, they shall be deemed to establish the standing to sue of Plaintiff Coalition, and the Court need not decide the standing of the other plaintiffs; 5. Defendant agrees to withdraw any and all outstanding discovery demands, including

efforts to meet and confer on insufficient discovery responses, regarding the standing of Plaintiffs Belridge Water Storage District, Berrenda Mesa Water District, Lost Hills Water District, and Wheeler Ridge-Maricopa Water Storage District; 6. Defendant, CDWA et al. and CSPA et al. further agree not to propound any

additional discovery, including seeking the depositions of representatives of Plaintiffs Belridge 2
STIPULATION AND ORDER RE PLAINTIFFS' STANDING (1:08-CV-00397-OWW-GSA)

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Water Storage District, Berrenda Mesa Water District, Lost Hills Water District, and Wheeler Ridge-Maricopa Water Storage District on the issue of Plaintiffs Belridge Water Storage District, Berrenda Mesa Water District, Lost Hills Water District, and Wheeler Ridge-Maricopa Water Storage District's standing to maintain the instant action. Respectfully Submitted, Dated: December 10, 2009 EDMUND G. BROWN JR. Attorney General of California

By__/s/ Deborah A. Wordham_____ DEBORAH A. WORDHAM CLIFFORD T. LEE DANIEL M. FUCHS Deputy Attorneys General Attorneys for John McCamman, Acting Director, Department of Fish and Game Dated: December 10, 2009 NOSSAMAN LLP ROBERT D. THORNTON PAUL S. WEILAND HENRY S. WEINSTOCK BENJAMIN Z. RUBIN By /s/ Henry S. Weinstock_

HENRY S. WEINSTOCK Attorneys for Plaintiffs Coalition for a Sustainable Delta, et al.

Dated: December 10, 2009

NOMELLINI, GRILLI & MCDANIEL PROFESSIONAL LAW CORPORATION

BY__/s/ Daniel A. McDaniel ______ DANIEL A. MCDANIEL Attorneys for Defendants in Intervention Central Delta Water Agency, et al.

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STIPULATION AND ORDER RE PLAINTIFFS' STANDING (1:08-CV-00397-OWW-GSA)

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Dated: December 10, 2009

MICHAEL B. JACKSON

By

/s/_Michael B. Jackson_____

MICHAEL B. JACKSON Attorneys for Defendants in Intervention California Sportfishing Protection Alliance, et al.

ORDER

IT IS SO ORDERED.

Date: December 11, 2009

/s/ OLIVER W. WANGER The Honorable Judge Oliver W. Wanger District Court Judge

SA2008300616 30903372.doc

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STIPULATION AND ORDER RE PLAINTIFFS' STANDING (1:08-CV-00397-OWW-GSA)

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